Banda (who was the Commander-in-Chief of Justice and Equality Movement Collective-Leadership, one of the components of the United Resistance Front) is allegedly criminally responsible as co-perpetrator for three war crimes under article 25(3)(a) of the Rome Statute:

violence to life, whether committed or attempted, within the meaning of article 8(2)(c)(i) of the Statute;

intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of article 8(2)(e)(iii) of the Statute; and

pillaging within the meaning of article 8(2)(e)(v) of the Statute.

On 16 October 2015, the ICC Office of the Prosecutor filed a Request for a finding of non-compliance against Sudan pursuant to article 87(7) of the Rome Statute, submitting that Sudan has failed to implement the Court's order to arrest Banda and that '[t]here is no prospect of Sudan complying with the Arrest Warrant of its own volition' (para. 4 of the Request). The Trial Chamber gave the Sudanese authorities an opportunity to file submissions on the Request by 9 November 2015, but the Sudanese Embassy refused receipt of the Registry's note verbale seeking their observations (see para. 3 of the Decision).

Sudan is not a State Party to the Rome Statute, and therefore not bound by the obligations to cooperate with the Court under Part IX the Rome Statute as such. However, Sudan is under an obligation to cooperate with the Court pursuant to Security Council Resolution 1593 of 31 March 2005. In this resolution, the Council referred the situation in Darfur to the ICC Prosecutor (OP1) and decided that the government of Sudan 'shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor' (OP2). Being a member of the United Nations, Sudan is obligated to accept and carry out Security Council decisions in accordance with the United Nations Charter (article 25 UN Charter).

In relation to the legal effect of Resolution 1593, the Trial Chamber considered that:

[T]his resolution requires Sudan to arrest and surrender Mr Banda in accordance with the Statute's cooperation framework. If Sudan has any difficulty which impedes the execution of these cooperation requests, it is also obligated to consult with the Court. (Para. 5)

Building on this consideration, the Trial Chamber went on to hold:

By disregarding the requests to arrest and surrender Mr Banda and not consulting with the ICC on their execution, Sudan failed to comply with requests to cooperate with the Court contrary to the provisions of the Statute and UN Security Council Resolution 1593. Particularly in view of Sudan's systematic refusal to cooperate with the Court in all pending cases, the Chamber considers it appropriate to grant the relief sought by the Prosecution and refer this matter to the UN Security Council.

This latest finding on non-cooperation and referral to the Security Council is, unfortunately, nothing new for Sudan and the Court. The Sudanese policy of ICC non-recognition and non-cooperation is still firmly in place, and the Security Council has thus far refrained from giving a formal response to the Court's referrals of these various instances of non-cooperation.